The Imperative for Justiciability of Economic, Social, and Cultural Rights in Post-Civil War Sri Lanka.

• Author: Sarvananthan, Muttukrishna

Introduction

The year 2019 marked the tenth anniversary of the end of the long-drawn-out civil war in Sri Lanka (1983-2009) that ended in May 2009, after the total military defeat of the Liberation Tigers of Tamil Eelam (LTTE, aka the Tamil Tigers) by the security forces. For the first five and a half years after the end of the civil war (i.e. until December 2014) there was no serious attempt to address the abuses endured by the victims of the civil war on all sides of Sri Lankan society (especially civilians), simply because the then government had the audacity to deny that abuses ever took place (for example, 'zero civilian casualties' was the oft-repeated mantra of the then government).

In spite of the fact that the government of Sri Lanka set up a Lessons Learnt and Reconciliation Commission (LLRC) (1) in May 2010 in response to intense pressure from the United Nations and the wider international community, there was no serious attempt at introspection or rectification on the part of the perpetrators of unbridled violence on all sides, including the then government.

Since the change of government in January 2015, there has been a limited attempt to institute Transitional Justice (2) mechanisms (e.g. the setting-up of the Office on Missing Persons and the Office for Reparations (3) to address past abuses and draw lessons therefrom in order to prevent recurrence of such abuses in the future.

Sri Lanka has been in the process of drafting its third Constitution since independence from the British colonial rule on February 04, 1948; the first being the Republican Constitution of 1972 and the second being the 1978 Constitution. The process of Constitution drafting between 2015 and 2019 has been unique because of its public consultations throughout the country. There has been a groundswell of support for the incorporation of Economic, Social, and Cultural Rights (ESCR) in the proposed new Constitution as a justiciable right (with judicial enforcement) during the course of these public consultations by the Public Representations Committee on Constitutional Reform. The specific rights incorporated in the ESCR are the (1) right to education, (2) right to health, (3) right to housing, (4) right to food, and the (5) right to work.

However, a small but vociferous group of legal professionals and scholars in Sri Lanka has been publicly campaigning against the incorporation of ESCR in the proposed new Constitution. The objections against inclusion of ESCR are: (1) that the enforcement and fulfilment of ESCR are best left to democratic processes through the elected executive and legislative branches of the government and not through the unelected judicial branch; (2) that the unelected judiciary should not be allowed to trespass into the policymaking processes of a democratic polity; (3) the incompetence of the judiciary to adjudicate on fiscal and monetary policies of the government; and (4) that the legal enforcement of ESCR would be financially costly to the exchequer. (See also Landau 2012: 221 for similar grounds for opposition to ESCR in Columbia, for example).

A Framework for Analysis

The Intersectionality of Transitional Justice and Economic, Social, and Cultural Rights The United Nations has defined 'transitional justice' as 'the full range of processes and mechanisms associated with a society's attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.' (Office of the High Commissioner for Human Rights (OHCHR) 2014: 5)

The former United Nations High Commissioner for Human Rights, Louise Arbour, has observed that 'transitional justice must have the ambition to assist the transformation of oppressed societies into free ones by addressing the injustices of the past through measures that will procure an equitable future. It must reach to--but also beyond--the crimes and abuses committed during the conflict that led to the transition, and it must address the human rights violations that predated the conflict and caused or contributed to it' (Arbour 2007, quoted in OHCHR, 2014: 1).

The four pillars of transitional justice processes are: (1) Accountability for abuses of human rights during the course of the conflict by investigating and punishing the perpetrators of such abuses (the 'right to accountability')' (2) Truth-seeking, to identify the root causes as well as the consequences of the conflict (the 'right to the truth'); (3) Reparations which should be provided to partially compensate for material losses incurred by victims of the conflict (the 'right to reparations'); and (4) Ensuring non-recurrence of conflict by various means of reconciliation efforts and enshrining of legal guarantees (the 'right to non-recurrence') (OHCHR, 2014: 5). (4)

Although other truth commissions (beginning with the establishment of the Truth and Reconciliation Commission (TRC) in South Africa in 1996) up until 2005 have primarily or solely focused on the violations of civil and political rights (prior to conflict as well as during conflict), the Commission for Reception, Truth, and Reconciliation in Timor-Leste (formerly known as East Timor) in its 2005 report also embedded for the first time violations of economic, social, and cultural rights (predating as well as during conflict--that is, the causes and consequences of conflict) into its remit (OHCHR 2014: 17-18). For example, the Commission for Reception, Truth, and Reconciliation in Timor-Leste discovered that, out of a total of 102,800 deaths caused by conflict from 25th April, 1974 to 25th October, 1999, only 18,600 (a mere 18 percent) were due to killings, while the overwhelming majority (82 percent) was due to 'hunger and illness', especially during the famine of 1978-1979 (OHCHR 2014: 18). Whilst killing constituted violation of the right to life (a civil and political right), death due to hunger and illness, of course, constituted violation of economic and social rights.

The Indivisibility of Civil and Political Rights (CPR) and Economic, Social, and Cultural Rights (ESCR) In order to transform provisions of the Universal Declaration of Human Rights (UDHR) into legally binding obligations, the UN in 1966 adopted two international covenants, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The CPR as enshrined in the ICCPR are referred to as 'first-generation rights', and the ESCR as enshrined in the ICESCR as 'second generation rights'. These two types of rights are fundamentally interdependent and are sine qua non for the functional fulfilment of both types.

The ICESCR addresses a number of specific rights, including the right to an adequate standard of living, to education, to self-determination, and to participation in cultural life. Further, it specifies equal rights for women and men, the right to work, to form and join trade unions, to have just and favourable conditions for work, the right to the best standards of physical and mental health, to social security and social insurance, and to enjoy the benefits of scientific progress (Leckie and Gallagher 2011: 3).

Objectives

The overall aim of this policy research paper is to advance evidence-based analyses and critically informed arguments in favour of the incorporation of economic, social, and cultural rights in the proposed new Constitution of Sri Lanka, towards building an inclusive society promoting shared prosperity grounded on meritocracy-cum-needs based democracy (as opposed to the present matronage/patronage-cum-greed based democracy--further on this below) after a quarter-century of savage civil war. Thus, we aim to argue a case for the inclusion of ESCR in the proposed new Constitution not only on its own right, but also as a means of transitional justice and peace-building in a war-torn country. Specifically, the justiciability of ESCR is proposed as a means of ensuring non-recurrence of the past armed conflict (the fourth pillar of the transitional justice processes).

The specific objectives of this policy research paper are: (1) to outline the status of Sri Lanka visa-vis ESCR as reflected in the Social and Economic Rights Fulfilment (SERF) Index compiled by the University of Connecticut; (2) to provide statistical and other evidence pertaining to Sri Lanka to demonstrate the inadequacy of the SERF Index to gauge the real status of a country in terms of realisation of ESCR; (3) to provide evidence of 'matronage/patronage-cum-greed' based practices of democratic governance in Sri Lanka; and (4) finally, to counter the arguments advanced by the opponents of incorporation of ESCR as a justiciable right in the proposed Constitution, drawing from international experiences of judicial enforcement of ESCR.

The Social and Economic Rights Fulfilment Index The Social and Economic Rights Fulfilment (SERF) Index was compiled at the University of Connecticut and pioneered by a development economist, Professor Sakiko Fukuda-Paar and her colleagues. Yet the Index, though perhaps useful for bench-marking fulfilment of social and economic rights in a country as a whole, might not capture the domestic imbalances in such apparent fulfilment. The Index should not therefore be construed as an all-encompassing indicator of the realisation of the social and economic rights of all the citizens of any given country. Moreover, the quality of educational, health, housing, food, and employment rights enjoyed by citizens cannot for understandable reasons be captured by the SERF Index, which is a drawback. The Index is however, a reasonably indicative measure for policy analyses and discourses.

The SERF Index for Sri Lanka increased from 70.48 in 1985 to 86.70 in 2015. While the improvement (or rise) was phenomenal between 1985 and 2005 (rising from 70.48 in 1985 to 82.01 in 1995, and to 85.17 in 2005), that rise was moderate between...